Ellenville Regional Hosp. v Mendez

[*1] Ellenville Regional Hosp. v Mendez 2008 NY Slip Op 52319(U) [21 Misc 3d 1132(A)] Decided on June 25, 2008 City Court Of Poughkeepsie Moloney, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2008
City Court of Poughkeepsie

Ellenville Regional Hospital, Plaintiff,

against

Maria Mendez EDWARD MENDEZ, Defendant.



CV-07-3524



M.L. Zager, Esq.

Attorney for the Plaintiff

543 Broadway

Monticello, NY 12701

Maria Mendez

Defendant, pro se

33 Richard Road

Hyde Park, NY 12538

Edward Mendez

Defendant, pro se

33 Richard Road

Hyde Park, NY 12538

Katherine A. Moloney, J.

The plaintiff seeks an Order to strike defendant's answer and for summary judgment pursuant to C.P.L.R. §3212, on the grounds that an account stated has been established between the parties and that the defendant has failed to raise a meritorious defense to the causes of action asserted in the complaint. Plaintiff's motion is supported by the affirmation of Geralidine Miedreich, Manager of PFS at Ellenville Regional Hospital, dated January 16, 2008. Plaintiff's motion is accompanied by Exhibits A and B. Defendant has not filed any opposition to plaintiff's motion.

Now, upon reading the notice of motion, the supporting affidavit and affirmation, and its accompanying exhibits, and due deliberation having been held thereon, this Court determines as follows:

ANALYSIS AND DETERMINATION

On or about September 24, 2007, plaintiff filed this lawsuit against the defendant, seeking to recover a sum of money in the amount of $ 3,057.00, which represents unpaid medical services rendered to the defendant, Maria Mendez, on February 10, 2006. Defendant filed an answer to the complaint with this Court on December 4, 2007 claiming that at the time she received services at the hospital, she had medical insurance coverage, which was provided to the plaintiff. On January 29, 2008, the plaintiff filed the instant motion, which remains unopposed by the defendant. On April 21, 2008, a preliminary conference was held wherein the plaintiff appeared, but the defendant failed to appear. There being no application for a default judgment, this matter was adjourned for purposes of rendering a decision on the instant motion. Plaintiff claims in this motion that it has not received any payments on the account through December 28, 2007 for the medical services rendered to the defendant, yet the defendant accepted the services. Plaintiff further alleges that defendant's failure to object to the statements of account rendered to defendants makes them financially liable to the plaintiff for the amount stated. In support of its motion, the plaintiff has attached a copy of the original hospital bill entitled, "patient account detail" for the defendant, Maria Mendez, who received medical services on February 10, 2006.

It is well settled that "the drastic remedy of summary judgment is appropriate only where a thorough examination of the merits clearly demonstrates the absence of any triable issue of [*2]fact." Vamattam v. Thomas, 205 AD2d 615 (2d Dept. 1994) citing Piccirillo v. Piccirillo, 156 AD2d 748 (2d Dept. 1989). The party seeking summary judgment must sufficiently establish the cause of action (or defense) and must tender evidentiary proof in admissible form to warrant the court, as a matter of law, to direct judgment in their favor. Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993) citing Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In short, the plaintiff bears the initial burden to show a prima facie case of entitlement to judgment by demonstrating the absence of any material issues of fact. Alverez v. Prospect Hospital et al., 68 NY2d 320 (1986); see North Fork Bank Corp. v. Graphic Forms Assoc., et al., 36 AD3d 676 (2d Dept. 2007).

If the plaintiff meets his burden of proof, the burden shifts to the defendant to come forward with evidentiary facts demonstrating the existence of a material issue of fact which would defeat summary judgment. Moezinia v. Baroukhian, 247 AD2d 452 (2d Dept. 1998). More specifically, the party opposing the motion must "show facts sufficient to require a trial of any issue of fact" in order to defeat summary judgment. Zuckerman, supra at 562.

Here, the basis of plaintiff's claim rests on the legal theory of an account stated, for there is no evidence that a written contract was executed between the parties. An "account stated" is an agreement between the parties that the debt is valid and due [see Citibank v. Jones, 272 AD2d 815 (2000)]. Where the defendant receives and retains the plaintiff's account without objecting to the amount due within a reasonable time, the plaintiff is entitled to summary judgment on the account stated, independent of the obligation. Citibank v. A.E. Caputo, 8 Misc 3d 131A (2d Dept. 2005); Werner v. Nelkin, 206 AD2d 422 (2d Dept. 1994). Plaintiff does not have to submit a signed copy of an agreement in order to prevail on a motion for summary judgment based upon the account stated, but the plaintiff must establish with some other legally admissible evidence an agreement between the parties that a certain balance remains due from one to the other, and the promise of the former to pay the balance. Sherman Acquisition Ltd. Partnership v. Thomas, 8 Misc 3d 130A (2d Dept. 2005); see, Schutz v. Morette, 146 NY 137 (1895). In order to establish a prima facie cause of action for an account stated, the plaintiff must demonstrate that the plaintiff mailed to the defendant a statement of account and that the defendant retained the statement for an unreasonable period of time without objecting thereto. Discover Bank v. Williamson, 14 Misc 3d 136A (2d Dept. 2007).

Here, there is no evidence of a written contract or agreement executed between the parties. While this is not necessarily fatal to the claim, the plaintiff has failed to establish with some other legally admissible evidence an agreement between the parties that a certain balance remains due to the plaintiff, and the promise of the defendant to pay the balance. Here, in support of its motion for summary judgment, the plaintiff has submitted proof of one (1) "patient account detail" for one of the defendants, Maria Mendez, and the affidavit of Ms. Miedreich. The evidence in support of the motion does not indicate if this is a copy of the invoice that was sent to the defendants, where the invoice was sent to, when it was sent to the defendants, whether it was mailed or personally delivered, how frequently it was sent to the defendants, whether the plaintiff mailed the invoices based upon generated monthly statements for the defendant in the regular course of business, how long the invoices were retained by the defendants without objection, or even if the invoice was sent to both the defendants, for the account detail only identifies one of the defendants, Maria Mendez. Plaintiff simply states the "statement of account [*3]was rendered to defendants"[Plaintiff's motion, ¶ 10]. Such ambiguous language raises doubt preventing this Court from summarily concluding that there exists no triable issue of fact, and providing no basis to grant a motion for summary judgment. This is compounded by the fact that the plaintiff fails to address that portion of defendant's pro se answer wherein it is alleged that the defendants had medical insurance which provided coverage for the medical services rendered to the defendant(s).

In short, there is no legally admissible evidence which establishes that there is no fact which cannot be controverted upon which liability depends. Indeed, the only material evidence that plaintiff has provided in support of its motion is ambiguous at best and sparse in details in that before this Court is one (1) bill for one (1) of the defendants covering one (1) month.

Finally, while the motion seeks summary judgment against both defendants, there is no evidence anywhere in the motion attributing financial accountability for these medical services to the defendant, Edward Mendez, and there is nothing stating that the defendant Edward Mendez received medical services from the plaintiff. C.P.L.R. § 3212 (b) provides that "[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion." This is popularly known to the bench and bar as "searching the record." DAVID D. SIEGEL, NEW YORK PRACTICE, 4th ed., § 282 (2005). This occurs "when the pleading being attached by the summary judgment motion is a responsive one . . . where plaintiff's motion is actually an attack on the answer. A motion in that category requires the court to go behind the answer to examine the sufficiency of the complaint. If the complaint is defective, it and not the answer is dismissed, and the plaintiff, although the movant, becomes the victim. The theory is that a bad answer is good enough for a bad complaint." DAVID D. SIEGEL, NEW YORK PRACTICE, 4th ed., § 282. Here, the plaintiff contends that the defendants have no defense to the cause of action for an account stated, and that their answer is a dilatory tactic based upon unfounded assertions. [Plaintiff's motion, ¶ 5]. Yet, when this Court searches the record, as it must do [Wilkinson v. Skinner, 34 NY2d 53 (1974)], it finds that as to the defendant, Edward Mendez, there is no cause of action establishing liability upon the theory of an account stated. Indeed, the hospital bill, which Ms. Miedreich certifies is a copy of the original bill on file with the plaintiff bears no mention of an "Edward Mendez." [Plaintiff's motion, ¶ 7].

As such, the plaintiff has failed to show a prima facie case of entitlement to summary judgment by demonstrating the absence of any material issues of fact. Alverez v. Prospect Hospital et al., 68 NY2d 320 (1986); see North Fork Bank Corp. v. Graphic Forms Assoc., et al., 36 AD3d 676 (2d Dept. 2007). The plaintiff has failed to tender evidentiary proof in admissible form to warrant, as a matter of law, summary judgment in its favor. Zuckerman, supra at 562. In addition, upon searching the record, the Court finds that the evidence proffered by the plaintiff demonstrates genuinely uncontroverted facts establishing that there exists no issue as to financial liability owed by the defendant Edward Mendez for medical services rendered to Maria Mendez, thus entitling him to summary judgment in accordance with C.P.L.R. § 3212 (b).

Therefore it is,

ORDERED, that plaintiff's motion for summary judgment is denied; and it is further

ORDERED, that upon searching the record, this Court concludes that summary judgment on the theory of an account stated must be granted in favor of the defendant, Edward Mendez. [*4]

All parties are directed to appear for further proceedings on July _____, 2008 at 8:30 a.m.

Dated: June ___, 2008___________________________

Poughkeepsie, New YorkKatherine A. Moloney

CITY COURT JUDGE

To:

ENTERED thisday of June, 2008

_____________________________________________________

JEAN JICHA,

CHIEF CLERK

An appeal from this judgment must be taken no later than the earliest of the following dates: (I) thirty days after receipt in court of a copy of the judgment by the appealing party, (ii) thirty days after the personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) thirty-five days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action.